Judge Ketanji Brown Jackson’s nomination to the Supreme Court goes to the Senate this week. The Majority Leader, Chuck Schumer, has confidently predicted an affirmative vote on Friday.
All that is to the good, but in the debate that will ensue over the next few days, the refusal of Judge Jackson to state, to the satisfaction of Republican members of the Senate Judiciary Committee, what her “judicial philosophy” is, will play a large part in the debate.
In an article for USA Today, “Ketanji Brown Jackson owes us an answer on her judicial philosophy,” Professor Scott Douglas Gerber has succinctly stated the Republican case. In his essay, he carefully goes through the six fundamental forms of constitutional inquiry to establish precisely what a “judicial philosophy" is, and why Judge Jackson’s answer in response to repeated queries about her philosophy is inadequate.
The votes are pretty settled by now, I trust, but Judge Jackson should not go on the high court with this cloud over her nomination and hearing. So let me walk through Gerber’s analysis with the aim of clarifying her answer to the Committee.
I think Professor Gerber would willingly concede that his six forms of constitutional argument were first identified as such in my work. I don’t own them; like one’s children, one’s ideas have lives of their own but with that concession, I ought to point out that his use of these ideas is very much off the mark as I understand them.
Prof. Gerber contends that a jurist’s “judicial philosophy” is an essential element in the determination by the Senate whether to consent to a judicial appointment. He defines a “judicial philosophy” as “the way a judge understands and interprets he law.”
Throughout his essay, Gerber makes the common assumption that we must interpret a rule before we can apply it. And he offers six different “theories of interpreting the constitution,” which turn out to be the six modalities of constitutional argument---history, text, structure, ethos, prudence and doctrine—by which a particular proposition of law is determined to be true.
There are two fundamental errors in this construction of these ideas. (1) It is not only not necessary to have a theory of interpretation to be able to apply a rule, if it were thought otherwise then we would need a further theory to justify using that theory, and so on ad infinitum. (2) This definition of a judicial philosophy seems to be the concept that I call the style of a judge, i.e., her preference for one form of argument over another just as experienced chess players develop a preference for a particular opening.
If there has been a systematic error in the years since these forms of argument were first described as such, it has been the effort to prioritize one form of argument to the exclusion of others. This has had the distressing effect of attempting to de-legitimate those decisions with which we disagree; if historical argument goes one way, say as to the adoption of the11th amendment, and the text goes the other way because it is much more restrictive that the announced purposes of the ratification of that amendment, then some jurists want to say that one or the other modality of argument is simply illegitimate. There is no warrant for this. Judicial philosophy may tell us many things but it cannot be the ground of legitimacy; for one thing, we simply don’t agree on our philosophies of jurisprudence and making this a prerequisite for giving deference to a court’s ruling is a recipe for chaos whatever the epistemological flaws in such a requirement.
Prof. Gerber concedes that, the “aforementioned theories of constitutional interpretation are not mutually exclusive and a specific Supreme Court justice sometimes employs different theories in different cases,” which would appear to undercut his demand that a nominee specify at her confirmation hearings what forms of arguments she intends to employ as a judge
And this is evident even in the most zealous of advocates for one or another set of legitimate arguments. Not Scalia with respect to original public meaning (a form of historical argument), not Breyer with respect to prudentialism, not Black regarding text, not Marshall and structure, not Harlan and ethos---NONE of these judges confined their actual opinions to exclude other forms of argument, indeed no sane judge would. For that sort of infatuation, one has to look to the academy---that is, to advocates who are not required to make legal decisions that bind others.
So Professor Gerber has it exactly wrong when he professes disappointment that Judge Ketanji Brown Jackson described her judicial philosophy as her “judicial methodology.” In fact, I was listening to the testimony at the time and muttered a quiet but passionate, “Hurrah!” The judge was precisely right: what is needed is the well-recognized methodology that employs all the modalities of constitutional argument the way a carpenter uses all the tools in his toolbox, depending on the task at hand.
Sometimes, in rare but difficult cases, we will get different outcomes depending on the form of argument that is used to explain a decision. That is as it should be: judging is not a suitable activity for machines or children that cannot tolerate the possibility of more than one correct answer to a complex problem. The fact that there are six ways of determining a proposition of constitutional law to be true or false does not provide a cudgel with which to batter the nominee. Quite the contrary: Judge Jackson had it right and the embarrassment, if there is to be any, should fall of those who want to de-legitimate our courts and our constitutional institutions based on a fundamental misunderstanding of judicial methodology.
Philip C. Bobbitt is Herbert Wechsler Professor of Federal Jurisprudence at Columbia Law School. You can reach him by e-mail at pbobbi@law.columbia.edu.